AT v Secretary of State for Work and Pensions

Under the Universal Credit two-child limit, children are ordinarily ordered by their dates of birth, with the earliest first. The exception for a child conceived through non-consensual sex applies only where that child is third or subsequent in that chronological order. A tribunal must apply that scheme as drafted. A human-rights challenge to the limit is foreclosed by binding authority, while a challenge to the rationality of the ordering provision must be pursued by judicial review and cannot be determined on a statutory appeal limited to error of law.

The appellant had three daughters. Her two eldest daughters were conceived in abusive and coercive relationships. The youngest was conceived in a stable relationship.

When the eldest daughter returned from local-authority care, the Department for Work and Pensions treated the daughters in birth order and paid the Universal Credit child element for the two eldest only. The appellant contended that the eldest daughter should instead be treated as third, so that the exception for non-consensual conception could apply and the youngest daughter could be included.

The First-tier Tribunal dismissed the appeal on 12 April 2022. On appeal, the central issue was whether the chronological ordering rule could be disapplied.

1. Appeal dismissed. The First-tier Tribunal made no error of law in applying the statutory scheme. The chronological ordering rule in regulation 24B required the daughters to be ordered by birth date. The exception for non-consensual conception could therefore assist only a third or subsequent child. It could not be applied to either of the two eldest daughters so as to secure payment for the youngest daughter.
2. The only apparent routes to disapplying regulation 24B were a human-rights challenge or judicial review. The human-rights route could not succeed. The reasoning in R (SC, CB and 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26, concerning the equivalent two-child limit, applied equally to Universal Credit and closed off that challenge.
3. The judge considered that an irrationality challenge to the ordering rule might have stronger prospects. The distinction between natural children and adopted or kinship children could produce an outcome contrary to family reunification and public expenditure objectives. The earlier successful challenge to the sequencing rules for adopted and kinship children illustrated that concern. However, this was not a judicial-review claim, and the Upper Tribunal’s jurisdiction on this appeal was limited.
4. Accordingly, neither proposed basis for interfering with the First-tier Tribunal’s decision was available. Its decision stood.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and held that the First-tier Tribunal had made no error of law.
• First-tier Tribunal (Social Entitlement Chamber): dismissed the appellant’s appeal on 12 April 2022, upholding the application of the Universal Credit two-child limit.